322 (5) and 30 months - right of appeal?
As a direct immigration barrister with extensive experience of dealing with Highly Skilled Migrants, among others in what is my now my 20th year practising immigration, my previous article raised the point about the apparent contradiction between stating that the person is "undesirable" to remain in the United Kingdom by virtue of paragraph 322 (5) of the Immigration Rules - which falls under section 9 of the Immigration Rules HC395 (as amended) and then a grant of 30 months leave under provisions that also state that you should not be "undesirable".
This has raised some comments, which at least means that some is taking the time to read what I am writing without hopefully putting the readers to sleep...
It has been suggested that it could be JR'd or potentially appealed, however, as was rightly noted, there is no guarantee that the First Tier Tribunal would entertain the appeal. The refusal itself says that there is no right of appeal under s.82 given the grant of leave, thus leaving on the face of it a judicial review challenge, however, these are often costly and subject to far stricter rules regarding evidence. This to some extent has been militated by the case of Balajigari v Secretary of State for the Home Department [2019] EWCA 673 where the Court note this problem - the issue is rather fudged though - as while the Court of Appeal appears to indicated that contrary to the norms of JR that evidence post the decision, given the procedural error in the process, may well be entertained by the Upper Tribunal this does not afford or does not easily afford within the current framework the ability for an Applicant to give evidence as they would before a First Tier Judge. There is also a further difficulty which is that refusal to grant permission or substantive relief gives rise to appeal on paper alone to the Court of Appeal, whereas a refusal by a First Tier Judge allows a right of appeal, on an "arguable" error of law to the Upper Tribunal and potentially if the Upper Tribunal are with you a further de novo (fresh) hearing in the First Tier Tribunal. This is potentially of great value, I had the strangest case where an individual had a case go to the UT twice before the third FTJ allowed the appeal (on the spot and with no argument from the Home Office).
However, as is noted in one of the comments, would the First - Tier entertain the appeal - this is a moot point, on the face of it a human rights claim has been made and essentially the relief sought has not been granted, however, the grant of leave itself could mean that the First Tribunal by applying s.104 of the Nationality, Immigration and Asylum Act 2002 holds that there can be no pending appeal, or any pending appeal is brought to an end by the grant of leave, which of course has happened with the grant of 30 months leave.
Now there are provisions for continuing an appeal but these would appear to be limited to where the individual is still facing removal and that this would breach their protected rights, inter alia, under their human rights, and the grant of leave is short. However, this would not seem to apply.
It would interesting to see how the First Tier Tribunal would treat any appeal, my preliminary thoughts are that they would find no valid appeal and the individual would find that they have wasted time and money - time being the operative worry given the 3 month deadline for bringing a Judicial Review application.
Whats the point you may well think? Well firstly, the individual has been tarred with an unchallenged brush of dishonesty and secondly what happens when the individual who has applied for ILR on the basis of 10 years lawful residence then makes, after another 10 years an ILR application? Surely this will also be refused given the unchallenged paragraph 322 (5) refusal and hence paragraphs 276B(ii) and (iii) of paragraph276B of the Immigration Rules HC395.
It appears to me that any decision to both refuse under paragraph 322 5 and then grant 30 months leave may well fall foul of the second Balajigari test as to the correct approach to paragraph 322 5. In Balajigari, the Court considered that there was a two stage test, firstly to determine, through essentially a fact finding exercise whether there had been dishonesty and then go onto consider the issue of Discretion as to whether to grant leave due to "exceptional circumstances".
It seems to me that Judicial Review of this type of refusal is the way forward, as I have mentioned, I have had permission granted on this particular issue and await a hearing, I have also been approach by other individuals in the same position and am advising accordingly depending on the facts of the case.
If you have been granted 30 months and not ILR - and often the timing is odd - ie the dependants are granted 30 months leave to remain and then sometime later the main Applicant gets granted 30 months, the please feel free to get in touch with me to see if I can help. I can be contacted at [email protected] or on 020 7242 3488 and am happy to discuss the facts of your case and any potential challenge, I say this carefully as any challenge ought to give consideration not only to the lack of an appropriate remedy but also to challenging the findings of dishonesty, which in itself can be involved and needs to be done properly, I say this as the Courts have consistently rejected weak explanations or no explanation at all, thus making it all the more important that any challenge is properly brought - if only for the fact that JR is a discretionary remedy it would not surprise me to find refusals predicated upon the Judge saying in effect "I do not know what you have to worry about, you have been granted leave notwithstanding cheating.
Paragraph 322(5) remains a highly contentious legal area, I have extensive experience, from attending the first demonstrations, I recall standing in the rain, through to advising MPs and Lords, writing questions for Parliament and providing briefing notes for well known and respected journalists such as Amelia Hill at the Guardian and having been interviewed on TV on this point. More importantly, I regularly attend Court and enjoy a good success rate in challenging such refusals.
I can well understand that after waiting years for a decision and finally getting some form of leave may well be enough for some people but there could be long term ramifications for such a grant of only 30 months, for example an individual who has been waiting for 2 - 3 years and is then granted ILR may well be entitled to apply for nationality immediately as opposed to waiting a further year depending on their circumstances or alternatively be put through the need to make numerous extension applications before being told you are not and essentially never will be granted leave to remain. This again my not sound harsh, but one ought to remember the words of Lord Wilson in the Supreme Court case of Rhuppiah v Secretary of State for the Home Department [2018] UKSC 58 where he stated quite clearly, as the Home Office happily often do that:
"44. The answer to the primary question posed by the present appeal is therefore that everyone who, not being a UK citizen, is present in the UK and who has leave to reside here other than to do so indefinitely has a precarious immigration status for the purposes of section 117B(5)."
Therefore it is quite clear that these grants of leave and the BRPS that come with them may at first blush appear to be a recognition that one can stay in the UK, you might well not have an easy way of challenging the finding of dishonesty, that will require to be disclosed on other applications, and potentially on applications made abroad, you may not ever qualify for ILR (paragraphs 322(5) and paragraph 276(ii) and (iii) and you will always be treated as having precarious leave in the UK, as opposed to other clients of mine who won their First Tier appeal after a long deal, got the ILR BRP and have applied for British Citizenship.
A small issue as to your length of leave, perhaps not, no challenge is almost or could be seen as an acceptance that you were dishonest.
As I have mentioned above, I have considerable experience stretching over some two decades of immigration experience and I can see real problems for this individuals who are in this position.
If you would like to know further, have a discussion about challenging the decision and the best way forward, please get in touch and I will do my best to help rectify what appears to me to be an approach designed to avoid First Tier Judges allowing appeals outright with the consequences that ILR is immediately granted (as it has to many of my clients).
I look forward to hearing from anyone caught in this position or who want to just discuss their options.
Paul Turner has 20 years experience practising in immigration and provides a first rate service to both solicitors and to the public as he is a licensed litigator (ie I can take you from conference through to the Court of Appeal if required). He is a highly regarded advocate and regularly appears in all the Courts in England and Wales.
Again if you need help, please get in contact at www.clerks@imperiumchambers, email me directly, or call the office on 020 7242 3488 and I will arrange to see you, I am aware of the pressures of work and family life and am happy to have conferences in the evenings and on Saturdays as part of the one stop service I and Imperium Chambers provides.
I will no doubt write more on this subject as matters develop and look forward to hearing from anyone in this situation should you wish a first class advocate and lawyer fighting for your rights.